United States v. David McClain ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0289n.06
No. 20-3874
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 14, 2021
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
DAVID E. MCCLAIN, ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
Defendant-Appellant. )
)
BEFORE: STRANCH, BUSH, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. David McClain pleaded guilty to being a felon in
possession of a firearm and ammunition. The district court sentenced McClain to 65 months’
imprisonment, an upward variance of eight months from his Sentencing Guidelines range.
McClain contests his sentence as substantively unreasonable. We disagree and thus affirm.
BACKGROUND
Officers approached a group of three men (one of whom was McClain) loudly gathered
together in a parking lot. As officers addressed the group, McClain, with his hand on his
waistband, turned away from them. An officer approached McClain. Following a pat down, the
officer discovered a semi-automatic pistol loaded with eight rounds, at which point McClain was
arrested.
McClain later pleaded guilty to knowingly being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district court
Case No. 20-3874, United States v. McClain
calculated McClain’s Guidelines range to be 46 to 57 months. Seeking a sentence at the bottom
end of that range, McClain emphasized his role as a family man with a stable job and justified his
possession of the firearm as a means of self-defense. The government, meanwhile, highlighted
McClain’s criminal history, which included at least nine convictions, one of which also related to
firearms.
After reviewing the 18 U.S.C. § 3553(a) factors, the district court concluded that a two-
level upward variance was “necessary based on all the facts and circumstances and the history of
this defendant.” Accordingly, the court imposed a 65-month sentence—a sentence in the middle
of the post-variance range, and eight months higher than the top of the pre-variance range. In
explaining its decision, the court noted that McClain’s prior sentences had not deterred him from
carrying a firearm. In particular, the court highlighted McClain’s 60-month sentence for an earlier
firearm offense, which, to the court’s mind, had proven ineffective, from a deterrence standpoint.
Further, McClain’s domestic violence offenses, the court explained, undermined McClain’s
description of himself as a “family man.” Those conclusions were in many respects consistent
with the presentence report, which suggested a two-level upward increase “to protect the public
from further crimes of the defendant, to provide just punishment, and reflect the seriousness of the
offense.” This timely appeal followed.
ANALYSIS
McClain contends that his sentence is “substantively unreasonable.” See United States v.
Rayyan, 885 F.3d 436, 442 (6th Cir. 2018) (“A claim that a sentence is substantively unreasonable
is a claim . . . that the court placed too much weight on some of the § 3553(a) factors and too little
on others in sentencing the individual.”). In essence, McClain claims his sentence is “too long
under the circumstances.” United States v. Johnson, 934 F.3d 498, 500 (6th Cir. 2019). Given the
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“judgment-driven” nature of sentencing, a district court receives “plenty of deference.” Id. We
therefore review a sentence’s substantive reasonableness under an abuse-of-discretion standard.
United States v. Dunnican, 961 F.3d 859, 880 (6th Cir. 2020). When a district court sentences a
defendant within the recommended Guidelines range, we presume the sentence is reasonable. Id.Here, however, the district court entered a sentence above that range, what we refer to as an upward
variance. United States v. Denny, 653 F.3d 415, 420 (6th Cir. 2011). In simple terms, a variance
is “the selection of a sentence outside of the advisory Guidelines range based upon the district
court’s weighing of one or more of the sentencing factors of § 3553(a).” Id. at 419. For a sentence
(like this one) that falls outside the Guidelines range, no presumption of reasonableness
accompanies the sentence on appellate review. United States v. Robinson, 892 F.3d 209, 212 (6th
Cir. 2018) (“An above-Guidelines sentence is neither presumptively reasonable nor presumptively
unreasonable.”). We instead give “‘due deference’ to the district court’s conclusion” so long as
the factors justify the variance. Dunnican, 961 F.3d at 880 (quoting Gall v. United States, 552
U.S. 38, 51 (2007)). Along with affording deference, we likewise employ the rule of thumb that
the further the judge’s sentence departs from the Guidelines sentence, the more compelling the
justification (based on the § 3553(a) factors) must be. United States v. Aleo, 681 F.3d 290, 299
(6th Cir. 2012).
Even with the upward variance, we see no abuse of discretion in the district court’s
application of 18 U.S.C. § 3553(a). Starting with its consideration of the factors in § 3553(a)(1),
the district court, before imposing the upward variance, addressed the nature and circumstances of
McClain’s offense, which included McClain possessing a stolen, loaded firearm along with
multiple narcotics while hanging around a high-crime area in the middle of the night. It likewise
considered his personal history and characteristics. Some of those factors, the court noted, had
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mitigating force, while others, like his history of domestic violence, did not. The court also
addressed the § 3553(a)(2) factors, which include considerations such as “promot[ing] respect for
the law,” “afford[ing] adequate deterrence,” and “protect[ing] the public from further crimes of
the defendant.” 18 U.S.C. § 3553(a)(2)(A)–(C). Here, the court explained that McClain’s criminal
history reflected a lack of respect for the law, with his violent episodes in particular inviting a
greater need for public protection. The court added that McClain’s previous firearm sentence of
60 months did not adequately deter him from illegally carrying again. Finally, as to the
consideration set out in § 3553(a)(3)—the kinds of sentences available—the district court
explained that McClain’s prior experiences with probation, community service, and noncustodial
sanctions apparently had not convinced him to adhere to the law. All told, the district court’s
§ 3553(a) analysis supported its upward variance.
McClain disagrees with that conclusion in three respects. He begins by characterizing this
matter as a “mine-run” felon-in-possession case deserving of a sentence within the Guidelines
range. See United States v. Perez-Rodriguez, 960 F.3d 748, 754 (6th Cir. 2020) (explaining that,
to apply a variance, a district court must “explain[] how the present case is different from the
typical or mine-run case that occupies the ‘heartland’ to which the Commission intends individual
Guidelines to apply” (internal quotations omitted)). True enough, “mine-run” cases that depart
from the Guidelines are “subject to closer review to assure that the justification given ‘is
sufficiently compelling to support the degree of variance.’” Id. at 757–58 (quoting Gall, 552 U.S.
at 50). Yet here, the district court identified specific facts and circumstances distinguishing
McClain and his offense from a more traditional felon-in-possession case. It noted that, on top of
possessing a stolen firearm, McClain was carrying methamphetamine, cocaine base, heroin, and
fentanyl at the time of his arrest. See United States v. Cechini, 834 F. App’x 201, 205 (6th Cir.
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2020) (noting that a case is not “mine-run” when the Guidelines range does not account for
unscored criminal conduct). And it emphasized that McClain needed specific deterrence given his
history of violence and firearm possession, observing that “this is not the first time [McClain has]
had problems with guns,” and that McClain’s previous firearm sentence did not deter him from
illegally carrying the firearm. The “message” thus had “to be sent,” the court explained, that
McClain “cannot carry a gun . . . for whatever purpose.” Because the “court varied upwards based
on aggravating factors relevant to the particular individual being sentenced,” Cechini, 834 F.
App’x at 207, it did not abuse its discretion in issuing an above-Guidelines sentence. See Johnson,
934 F.3d at 500.
Next, McClain asserts that the district court relied too heavily on his criminal history in
setting his sentence. But for many of the reasons just discussed, we see no merit to this contention
either. Even when a defendant’s criminal history category accounts for his crimes, it is not
substantively unreasonable for a district court to justify a variance on that same history. “We have
consistently rejected defendants’ arguments that a district court cannot impose upward variances
based on criminal history, simply because the Guidelines calculation already accounts for criminal
history as a factor.” Dunnican, 961 F.3d at 881 (collecting cases); see also United States v. Lee,
974 F.3d 670, 677 (6th Cir. 2020). Nor does McClain gain traction in suggesting that the district
court placed too much weight on his criminal history, and not enough on his mitigating
characteristics. See United States v. Owen, 940 F.3d 308, 317 (6th Cir. 2019). There are two
problems with that suggestion. One, a defendant’s criminal history may inform a district court’s
consideration of other § 3553(a) factors, such as the need for deterrence or protection of the public.
See United States v. Lanning, 633 F.3d 469, 475 (6th Cir. 2011). To that end, the district court
explained that a longer sentence was appropriate here because McClain’s prior, shorter sentence
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for similar conduct did not deter him from illegally possessing a firearm or curtail his pattern of
violent activity that threatened public safety. See United States v. Nixon, 664 F.3d 624, 626 (6th
Cir. 2011) (affirming an upward variance from the 37-month Guideline maximum in part because
a prior 36-month sentence did not deter the defendant from committing a similar future offense).
Two, the court did consider and weigh McClain’s mitigating factors. The considerations cited by
the court were McClain’s difficult childhood, steady employment, family situation, health
problems, and the effect on McClain of his son’s shooting. But to the district court, those
considerations were, in some respects, undercut by McClain’s multiple domestic violence
convictions. And his claim that he carried a firearm to protect his family was undermined by the
fact that he also carried the firearm along with drugs in a high-crime area known for drug
trafficking. In the end, those mitigating factors were less convincing to the district court than
McClain had hoped, at least when compared to deterrence, criminal history, and public safety
considerations. Yet “[a] district court’s attaching of great weight to a few factors does not
constitute reversible error.” Dunnican, 961 F.3d at 881 (cleaned up) (quoting Gall, 552 U.S. at
57).
Finally, McClain characterizes the decision to depart upwards as “unusual” in that the
government did not request the variance. But it is unclear why the government’s silence renders
the “[district] court’s careful, nonarbitrary consideration of the § 3553(a) factors and the
defendant’s arguments” an abuse of discretion. United States v. Case, 434 F. App’x 522, 523 (6th
Cir. 2011); see also Dunnican, 961 F.3d at 880 (“In general, we must give ‘due deference’ to the
district court’s conclusion that the sentence imposed is warranted by the § 3553(a) factors.”
(quoting Gall, 552 U.S. at 51)). The presentence report suggested, and the court adopted, a two-
level upward variance. The government did not advocate for the variance. But nor did it object
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to the variance in the district court or cede the point on appeal. In the end, “this debate turns on
perspective—and the perspective that counts, so long as it is reasoned,” as it was here, “is the
district court’s.” Johnson, 934 F.3d at 501.
We affirm.
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